05 March 2007

The latest (6th) edition of Bernd Ruethers' classic book Die Unbegrenzte Auslegung ('Limitless Interpretation') contains a Postscript by the author that gives a fascinating picture of the difficulties the legal (academic) community of post-war Germany has had in dealing with the Nazi past. It is a picture painted by a scholar looking back - more than 35 years after originally writing his book and almost 60 years after the historical period he deals with - at his community and at his country.

Originally published in 1968 as a Habilitationsschrift, Die Unbegrenzte Auslegung was one of the very first detailed studies of jurisprudence and legal methodology during the Nazi-years. In addition, Ruethers was one of the first to argue against Radbruch's by then canonical assessment that it had been positivism that had rendered German judges powerless against Nazi-era injustices.

The 2005 edition of Die Unbegrenzte Auslegung reprints the book's original text, preserving it's value as an early assessment of Germany's recent legal past, written at a time when many of the authors discussed were still alive. In his new Postscript, Ruethers looks back at the genesis of his own study and at its reception (see also his Preface to the 6th edition). The concluding paragraphs of the Postscript, by contrast, are forward looking and discuss the book's - and the topic generally - continued importance.

The first sentence of the preface to the 1st edition (1968, reprinted in the new edition) is telling for the intellectual climate in which the book was written (my own translation, I'm afraid):

"The development of private law during National-Socialism has, twenty-three years after the collapse of 1945, not yet been comprehensively discussed or described. For this, several reasons may be given, but hardly any justification".

The 2005 Preface describes that same climate more generally in terms of a 'strategy of repression', a phrase that resonates well with Michael Stolleis' theme of'Reluctance to Glance in the Mirror', discussed in his Prologue to Joerges/Singh Ghaleigh (eds.), Darker Legacies of Law in Europe (2003). Stolleis, Ruethers (in the Postscript) and Christian Joerges (in his paper Continuities and Discontinuities in German Legal Thought, see below) all give the same striking example of the longevity of this 'reluctance' - the kinder assessment - or 'strategy' - the harsher variety: the fact that the German Association of Public Law Teachers waited until the new Millenium to dedicate its Annual Meeting to the issue of Public Law under National-Socialism.

While the nazi-era as such was generally not discussed in German law faculties in the immediate post-war, a number of legal concepts and doctrines that had their origins in this period did form part of the standard curriculum. This meant, in Ruethers' words, that:

"foundational notions, doctrinal figures and instruments of interpretation that had been practiced during the Nazi era, were presented to post-war generations of students glowing in an aura of pure scientific quality (‘reiner Wissenschaftlichkeit’).

According to Ruethers, "academic discussion on Constitutional interpretation is", still in today's Germany, "generally conducted predominantly a-historically and a-politically". For an outsider, it must surely be impossible to evaluate such a claim fully. If (still) true, however, Ruethers' assessment is of great interest from a comparative studies point of view for the difference it sketches between Germany and the United States. It is hardly possible to open any book or read any article on Constitutional interpretation in the US without finding an extended discussion of both historical developments and political implications of the theory, art and practice of constitutional adjudication.

The German academy's initial 'choice' to ignore rather than to study in detail law under the Nazis may have had another consequence: the persistence of faulty conclusions about the role of lawyers and legal methodology during that time.

Ruethers writes:

"A realistic presentation of the jurisprudential theories and practices of the Nazi-state disproves the legend that the official injustices of the Nazi era should be traced primarily to the legal positivism (‘Gesetzespositivismus’) said to have been prevalent at the time. The perversion of the legal order was carried out above anything with anti-positivistic arguments and instruments".

This view - the position he originally defended in 1968 - is now widely accepted, at least to the extent that, even for those who do not believe in the negative impact of anti-positivistic theories and practices, positivism itself certainly was not a major culprit.

When looking back on what went wrong under fascism, Ruethers' Postscript makes a strict distinction between 'legal methodology' ('Rechtsmethoden') on the one hand, and 'legal theory and philosophy' on the other. For Ruethers, legal methodology is 'value neutral'. Legal theory and philosophy, by contrast, should be firmly grounded in some form of 'substantive value order' ('materielen Wertordnung'). In fact; Ruethers' concluding remarks for the future concern precisely the importance of a firm normative grounding for legal theory; a worry voiced against the background of his perception that modern (German?) legal theory is insufficiently conscious of its own moorings.

Ruethers' distinction between 'legal methodology' on the one hand, and 'legal theory and philosophy' on the other and his insistence on the value-neutrality of method are intriguing. Both points however cannot ultimately, I would argue, be sustained.

The debate over the substantive implications of legal method is one of the most contested in all of legal literature. I will just make three very brief points:

(1)It is true that more recent scholarship on law under fascism (especially professor Grosswald Curran's paper Fear of Formalism) has argued that legal historians have overestimated the causal connection between choices for certain methods and substantive injustices. This important argument goes right against the dominant trend for legal scholars to blame methodology (rather than their brethren, colleagues?) for substantive evils. At the same time, judges of many jurisdictions continue to debate issues of method vigorously - even while often agreeing on substantive outcomes. Should these persistent debates not count as a prima facie indication that something substantive must be at stake in methodological debates?

(2)Judicial activity obviously takes place in an institutional and political context. Ruethers' Postscript contains an important insight on this point where he points out that the fascist dictatorship in Germany presented the peculiar situation of a "substantive conversion/transformation of a legal order in a situation of a largely reticent legislature". This context may be crucially important when evaluating the merits or faults of a method such as positivism. In the early days of a new ideological order that has a largely inactive legislature, it would seem likely that a positivistic stance on the part of judges will preserve at least some of the values of the previous legal order (Guido Calabresi made this argument for Italy in his fascinating article Two Functions of Formalism). As the new regime establishes itself and more laws are enacted, positivism will allow more and more of the new ideology to take effect.

(Incidentally: A 1992 debate between Kathleen Sullivan and Gerald Neuman on judicial 'balancing' in the US makes a comparable point; judicial flexibility in a conservative-dominated era is likely to please liberals (witness the Warren Court in the US), but the inverse may very well also be true!)

(3)Finally, the method/theory separation seems difficult to maintain generally. Comparative law insights underline this point as different legal cultures may draw the line between method and theory at different points. A theory that is merely a theory of interpretaton in one legal order may very well be a substantive theory of 'the Constitution' or of 'Constitutional law' generally in another. Think by way of example of the debate on Originalism in the United States as compared to the absence of anything resembling such discussions more or less anywhere else. In the abstract; I don't think it is possible to meaningfully separate originalism as a (neutral) method of interpretation and as a (substantive) legal theory or philosophy.

Ruethers' Postscript concludes by looking towards the future. For the author, the danger of Unbegrenzte Auslegung is clearly not confined to the exceptional situation of totalitarian regimes. For him, looking after legal methodology is a 'Dauerafgabe'; a task to be undertaken continuously. In this, Ruethers must surely be right.

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